ICLR DVD

At a speech in Lincoln’s Inn Old Hall on 21st October 2009, marking the launch of The ICLR’s DVD on Law Reporting, Lord Judge, the Lord Chief Justice, gave a strongly worded condemnation of the increasingly prevalent habit of citing excessive and irrelevant authorities in court. “If it is not necessary to refer to a previous decision of the court,” he thundered, “it is necessary NOT to refer to it.” Though the words used were those of Viscount Falkland in 1641, it was clear that Lord Judge subscribed to the sentiment 100 per cent.

His Lordship was speaking in support of the principle that cases should only be reported if they laid down some new principle of law, or added in some way to the sum of legal knowledge. All too many cases cited in court, he complained, had simply been downloaded from the internet with no regard to their value as precedents.

Such cases, he said, being largely fact-specific and of no legal relevance, could not be categorised ‘authorities’. Many were what he nicknamed ’email judgments’, designed to do no more than satisfy the requirements of justice between the parties at the end of a long day’s hearing.

The Incorporated Council of Law Reporting had been established in 1865 to counter a tendency of enterprising barristers and printers to get together to make a quick buck out of law reports, with no regard to their usefulness to students or practitioners. By contrast, The ICLR would cover all the superior courts and ensure not only that all the important cases would be reported, but also that the unimportant cases would not. Its founding father, Nathaniel Lindley QC, later Master of the Rolls and a Law Lord, laid down the essential criteria according to which cases would be judged for their reportability. Those same principles still govern The ICLR’s approach today, as the DVD aimed to demonstrate.

The title, ‘Always Cited in Preference’ refers to the fact that the official law reports published by the ICLR must, both by court direction and according to professional convention, be used in preference to any other published version of the same case. These reports are widely recognised as representing the ‘gold standard’ of law reporting, and the cases contained in them as “the canon” of judge-made law.

Lord Judge commended the DVD and endorsed The ICLR’s selectivity. The decision as to what should be reported, and therefore what should be regarded as an ‘authority’, was one that professional law reporters were ideally placed to decide.

Incidentally, this is not the first time the Lord Chief Justice has complained about the excessive citation of earlier cases in court. In a judgment given in the Court of Appeal (Criminal Division) in July in the case of Regina v Erskine [2009] EWCA Crim 1425 (The Times, July 22, 2009) he made what he hoped would not merely be “one more plaintive lament against what has become an irreversible process” caused by the rapid growth of internet databases offering instant access to unreported judgments. “Firm measures are immediately required”, he had said, “to ensure that appeals can be heard without an excessive citation of, or reference to, many of its [ie the court’s] earlier largely factual decisions”.